The 2011 movie Horrible Bosses was a comedy about the extreme and outrageous behavior of the protagonists’ supervisors. In the movie, the lead characters devise a murderous plot for revenge against their employers, but what if instead of this unlawful scheme they chose to take legal action to redress their emotional distress. Unfortunately, for many people, having a horrible boss is no laughing matter, but is rather a reality they are forced to endure every time they clock into work. But at what point does experiencing employer misconduct cross the line from an unfortunate reality to a viable legal claim for intentional infliction of emotional distress?
To prove a claim of intentional infliction of emotional distress (“IIED”) in Ohio, the plaintiff must show that the defendant intentionally or recklessly caused the plaintiff serious emotional distress by extreme and outrageous conduct.1 While this may seem like an easy feat, in reality the bar is high for the plaintiff’s burden of proof.
In the context of an IIED claim brought pursuant to employer misconduct, the plaintiff-employee must establish: (1) the employer intended to cause emotional distress or knew or should have known that their actions would result in the employee’s emotional distress, (2) the employer’s conduct was so extreme and outrageous as to go beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community, (3) the employer’s actions were the proximate cause of the employee’s psychic injury, and (4) that the mental anguish suffered by the employee is serious and of a nature that no reasonable person could be expected to endure it.2
But, just how “extreme and outrageous” does the employer’s conduct need be to give rise to a successful IIED claim? In a case from 1983, the Supreme Court of Ohio indicated that “‘liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”3 The Court went on to say that “‘the rough edges of our society are still in need of a good filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s [sic] feelings are hurt.’”4 For example, Ohio courts have held that an employer’s discrimination based on race, age, or sex, without more, does not constitute extreme and outrageous conduct for IIED purposes. 5
A single isolated incident of a sexually charged, lewd comment made in the workplace does not establish extreme and outrageous conduct for purposes of an IIED claim.6 However, exposure or simulation of male genitalia in a work environment for the purpose of retaliation does rise to the level of extreme and outrageous conduct.7 Additionally, an employer sanctioned rumor about an employee’s sexual orientation is also considered intolerable in a civilized community.8
While an employee’s termination of employment, without more, does not give rise to a viable IIED claim, an IIED action brought by an at-will employee against her former employer is not barred merely because her discharge was obtained in a lawful manner.9 In one case, the Supreme Court of Ohio upheld a jury verdict finding the defendant-employer liable to the plaintiff-former employee on his IIED claim.10 The Court agreed that the employer’s conduct of misleading the former employee into believing illegal pricing practices were legitimate, discharging the employee after blaming him for the illegal practices, and thereafter targeting him as a suspect in a federal investigation into the pricing practices rose to the level of extreme and outrageous.11
Although plaintiffs in every IIED action bear a heavy burden, an employee that has been affected by extreme and outrageous employer misconduct may have a viable claim under Ohio law. Cases are often fact specific, and what constitutes as extreme and outrageous is constantly evolving given today’s social climate.
By Craig T. Matthews, Esq., a business, employment, and litigation lawyer from the Dayton and Cincinnati, OH area, with assistance from Mary Kraft.
1 20 Oh Jur Damages § 58.
3 Yeager v. Local Union 20 (1983), 6 Ohio St. 3d 369, 375.
5 Lopez v. American Family Insurance Company, 161 F. Supp. 3d 570 (N.D. Ohio 2014); Rush v. E.I. DuPont DeNemours and Co., 911 F. Supp. 2d 545 (S.D. Ohio 2012); Shoemaker-Stephen v. Montgomery County Bd. of Com’rs,, 262 F. Supp. 2d 866 (S.D. Ohio 2003).
6 French v. United States, 195 F. Supp. 3d 947, 957 (N.D. Ohio 2016).
7 Radcliff v. Steen Elec., Inc., 164 Ohio App. 3d 161, ¶ 47 (9th Dist. 2005).
9 Meminger v. Ohio State Univ., 2017-Ohio-9290, ¶ 16 (10th Dist. 2017); Russ v. TRW, Inc. (1991), 59 Ohio St. 3d 42, 49.
11 Id at 47.